Could Colin Craig’s case undermine the ERA?

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Aggrieved employees may start eschewing the ERA if the Human Rights Review Tribunal continues to hand out high awards – that’s the warning from one employment law firm which says Colin Craig’s case could be instrumental in such a shift.

“Employees who believe they have been sexually harassed or discriminated against in their employment have a right to elect whether to pursue their claim under the Human Rights Act 1993 (HRA) or the Employment Relations Act 2000 (ERA),” according to Simpson Grierson partner Phillipa Muir.

“The Tribunal's recent awards could signal a more lucrative pathway for aggrieved employees who have the option of pursuing a claim under the HRA,” she continued.

Earlier this week, the Human Rights Review Tribunal released its decision in the highly-publicised case featuring Conservative politician Colin Craig and his former press secretary Rachel MacGregor.

Craig was ordered to pay nearly $129,000 for breaching the confidentiality of a settlement with MacGregor - $120,000 of that was for humiliation, loss of dignity and injury to feelings, signalling a continuing upward trend in human rights damages awards.

"It's very significant in terms of awards of compensation for distress because we've had the Court of Appeal in the employment arena say that awards of around $25,000 to $35,000 were pretty much the high-water mark," explained Muir.

"That's in relation to Authority and Employment Court decisions. Here we have got the Human Rights Review Tribunal, a separate institution, deciding that for serious wrongdoing they are going to go well over $100,000."
However, the Employment Court is far from ignorant when it comes to the imbalance between awards.

“There has been an express acknowledgement from the Employment Court of a need to recalibrate these awards,” says Chapman Tripp senior associate Marie Wisker.

“They have been so stagnant for so long and there has been some high profile decisions coming out from the Human Rights review tribunal decisions where there have been substantial awards made for conduct that, in the employment jurisdiction, you wouldn’t see those levels of awards at all.”

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